The public protector is inept and has failed the people of SA

A word from the court … immense power comes with great responsibility and if the public protector fails to carry out her duties, as she has, she must take full responsibility. Picture: Moneyweb

Public Protector Busisiwe Mkhwebane has raked in another punitive costs order against her. This time for an investigation conducted by her office into the Estina dairy farm scandal that showed “gross negligence”.

On Thursday, Judge Ronel Tolmay of the North Gauteng High Court, satisfied that both punitive and personal costs orders were warranted, handed down the following costs order against Mkhwebane (in all instances the costs are at attorney-client scale, which costs include the costs of two counsel):

In her official capacity, she is ordered to pay 85% of the costs of the Democratic Council plus 85% of the costs of the Council for the Advancement of the South African Constitution.

In her personal capacity, she is ordered to pay 7.5% of the costs of the Democratic Council plus 7.5% of the costs of the Council for the Advancement of the South African Constitution.

The court was concerned that the public protector made use of two sets of counsel, consisting of a senior and junior counsel in one matter, and a senior and two junior counsel in another matter. The public protector was however not paying the costs of the third junior counsel. The court was of the opinion that one set of counsel could have dealt with both matters. The court held that the public protector’s decision to brief two sets of counsel “shows a total disregard for taxpayers, who will have to foot the bill …”).

The court further held that “this flies in the face of her complaint about how financial constraints limit her ability to properly investigate matters”.

The courts, in applying the tests (for awarding personal costs) set out in Public Protector versus the South African Reserve Bank, Case CCT 107/18, opined that: “A reading of the judgment emphasises the tests that must be applied, the importance of holding public officials accountable, and the gravity of the decision that the court must make”.

The general test for the imposition of personal liability costs was articulated by Chief Justice Innes in Vermaak’s Executors v Vermaak’s Heirs (1909 TS 679, 691): “The conduct in connection with the litigation in question must have been male fide [‘in bad faith’], negligent or unreasonable.”

The court referred to the SA Reserve Bank judgment, in which it was held that the Constitution gave the court the power to impose personal costs on a public official, as the Constitution requires public officials to be accountable and observe heightened standards in litigation. The Reserve Bank judgment iterates:

“They must not mislead or obfuscate. They must do right and they must do it properly. They are required to be candid and place a full and fair account of the facts before a court.”

In the Reserve Bank case the court held that the public protector falls into the category of public litigant, and carries a higher duty under the Constitution to respect the law, to fulfil procedural requirements “and to tread respectfully when dealing with rights”.

In the minority judgment in the Reserve Bank case it was stated that “… the Public Protector should not be allowed to abuse her power or office with impunity”. It was agreed that a personal punitive costs order would be in warranted in appropriate circumstances.

‘Not untouchable’

The court further held that the Public Protector Act does not create immunity when the public protector acts in bad faith. The public protector is not untouchable, and equality of all is central to the Constitution. No one can claim total immunity “when they blatantly transgress their statutory and constitutional duties”.

A personal costs order can be granted against public officials where they show a gross disregard for their professional responsibilities (Pheko v Ekurhuleni Metropolitan Municipality) and where they act inappropriately and in an egregious manner (Reserve Bank, Black Sash II).

In this matter, the public protector was made aware that a personal and punitive costs order would be sought against her. The public protector not only opposed the costs order, she opposed the application on its merits as well.

The court held that the public protector’s failures and dereliction of duties in the Estina matter far outweighed what was set out in the Reserve Bank matter: “… her conduct in this matter is far worse, and more lamentable”. The court further stated: “In this instance her dereliction of duty impacted the rights of the poor and vulnerable in society, the very people for whom her office was created.”

Summing up, the public protector turned a blind eye, her conduct during the entire investigation constitutes gross negligence, and she failed completely to execute her constitutional duties.

“Her inability to comprehend and accept the inappropriateness of her proposed remedial action constitutes ineptness.”

The public protector should take note of what the court said: “The PP has immense power, but with that power comes great responsibility. If she fails [to execute her duties], as she did in this case, she must take full responsibility.”

It should be cold comfort for Mkhwebane that “the purpose of a personal costs order against a public official is a vindication of the Constitution”.

AUTHOR PROFILE

Barbara is a CA(SA) with post graduate qualifications in tax and international tax. Her experience includes working for auditors, large corporates, and Sars. Economics, financial corruption and tax policy are among her interests.

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28

You cannot compare a criminal trial with an application where the parties argue on sets of papers. And the Porritt strategy, to represent themselves, places a huge burden on the judge to make sure that the accused receive a fair trial. Judge Splig has been meticulous and brilliant in his approach.

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72

No one person can be this dumb. This is clearly orchestrated by her masters who are hell bent in protecting their own interests. For her, the potential reward and/or gratitude must by far outweigh the fact that she is prepared to stoop this low.

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37

Just another incompetent cadre clown completely out of her depth parachuted in to do a job which she is not qualified for. Just like Hlaudi Motsoeneng (SABC), Lucky Montana (Prasa), Brian Molefe (Transnet and Eskom), Dudu Muyeni (SAA), Bathabile Dlamini (Minister for Social development), Faith Muthambi (Minister of Public Service), Premier Supra Mahumapelo and of course the poster boy for corrupt incompetence: President Jacob Zuma. The fact is, pre 1994 it was a choice between putting them in charge or a civil war. At the time, Genl Constand Viljoen said only time will tell which was the right choice and some days I really wonder if we made the right choice…

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I am always interested when I hear there were other options, Chev. Like what precisely ..? Those were terrible times as I recall what with the army in the townships and camps every year. I knew the ANC was going to be bad, I just did not know how bad. My biggest disappointment was was that we were going to get rid of discrimination and the converse has turned out to be true. I am afraid we have bing doodled by the digit of fate in South Africa

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13

We really need to let go of this narrative. If anything nats waited far too long to negotiate untill the had no cards left to play. Remember SA was in even more dire straits after PW’s Rubicon speech in 85. Interest rates 20% plus, prescribed assets – forced asset managers to buy gov bonds, dual currency with the finrand for overseas transactions – elaborate way to print money essentially. Foreign creditors not wanting to lend us anymore money – not because of sanctions but because we were technically insolvent. A lot of the things we are afraid will happen now was happening back then. No my friend we all have these rosy youthfull memories of those days with Wielie Walie and Haas Das se Nuuskas on TV, but we were in dire straits finacially and we were scarring thousands of youngsters for live by sending them out to the Caprivi and into the townships to fight an unjust war. Apart from all this SA was a verkrampte, calvinistic backwater to live in back then, rock music was banned left right and center, 2 – 21 age restrictions to see any movie with a flash of sideboob in it.

I am often highly critical of these bunch of clowns that we have now, but we need to stop romanticisng the good old days.

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6

The official unemployment rate in 1994, as recorded by Statistics South Africa, was approximately 20%.

The World Economic Forum’s global information technology report ranked the quality of South Africa’s education system 140th out of 144 countries.

The first post-apartheid census was held in 1996. It recorded that there were 1,453,015 households in informal settlements across South Africa. The 2011 census revealed that this number had increased to 1,963,096 households.

The 1996 census revealed that 958,187 people living in South Africa were born outside of the country. The 2011 census revealed that 2.3-million people were born outside of South African. This amounts to an increase of 238% over the fifteen year period.

The South African Reserve Bank keeps historical records show that on 3 January 1994, the rand was trading at R3.40 to the dollar.

The department of energy’s records show that in February 1994 the petrol price ranged from R1.64 to R1.75 per litre.

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Thank you for the excellent summary of the PP judgement Barbara.
Don’t know whether we should laugh or be depressed about this idiotic woman and her clown train. Perhaps when Politicians stop referring to each other as “Cadres” and “Fighters” we will finally have intelligent, balanced, wise, non-partisan, people in positions like Public Protector.
Thankfully, we still have an excellent judiciary.

To borrow from another idiot, “Busisiwe Mkhwebane, mam, can you protect us from yourself?”

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22

The real question is, will there be enough support in Parliament to remove her.
By the way, Barbara, the CJ after the erstwhile Chief Justice Innes’s name are not his initials, but the abbreviation for “Chief Justice”. A judges initials are only ever given in a case report if there are more than one judge with the same surname at the same time serving as a judge in that particular court. So if it says, e.g. Leach JA, the JA stands for Judge of Appeal and JP stands for Judge-President, etc.

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Many people, myself included, may be found to be inept, but we are not selected to fill crucial positions in government, by people who are supposed to be competent. This person was supported by the ANC and the EFF and opposed by the DA.

Competence recognises both competence and incompetence, while incompetence recognizes neither. This is the Dunning/Kruger effect.

This leads us to the alarming reality that she might be utterly incompetent, but the ANC and the EFF politicians and supporters are infinitely worse. She was the best they had to offer, and the courts found her incompetent. This implies that the courts have found the ANC and EFF supporters to be utterly incompetent and a disgrace to the country.

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14

Would love to know what all this is costing the SA taxpayer, yes she is made to pay 15% of the opposing side’s fees out of her own pocket, but the taxpayer still picks up the other 85% (her office = taxpayer) + all of her legal fees.

So what have the taxpayer actually gained out of this whole charade? Nothing! Just more legal costs to come. They will never let go of this tiresome woman.

I almost think it would be beter to just let her be and write her reports and follow the JZ approach and just ignore it. Will be cheaper for the taxpayer in any case.

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“The court held that the public protector’s failures and dereliction of duties in the Estina matter far outweighed what was set out in the Reserve Bank matter.” Then why are the personal costs order not higher?